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YULDASHEV v. RUSSIA - 1248/09 [2010] ECHR 1071 (8 July 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1071.html
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[2010] ECHR 1071
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FIRST
SECTION
CASE OF YULDASHEV v. RUSSIA
(Application
no. 1248/09)
JUDGMENT
STRASBOURG
8
July 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Yuldashev v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 17 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 1248/09) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Uzbek national, Mr Murod Yuldashev (“the
applicant”), on 12 January 2009.
The
applicant was represented by lawyers of the
EHRAC/Memorial Human Rights Centre, an NGO with offices in London and
Moscow. The Russian Government (“the Government”)
were represented by Mr G. Matyushkin, Representative of the
Russian Federation at the European Court of Human Rights.
The
applicant alleged that his detention by the Russian authorities with
a view to his extradition to Uzbekistan, where he faced politically
motivated persecution by the local authorities, gave rise to
violations of his rights under Articles 3, 5 and 13 of the
Convention.
On
13 January 2009 the President of the Chamber to which the case was
allocated decided, in the interests of the parties and the proper
conduct of the proceedings before the Court, to indicate to the
Government of Russia, under Rule 39 of the Rules of Court, that the
applicant should not be extradited to Uzbekistan until further
notice.
On
20 May 2009 the President of the First Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background information
The
applicant was born in Uzbekistan in 1972.
Prior
to May 2005 the applicant lived and worked in Uzbekistan in a shoe
factory. On 13 May 2005 the applicant and his colleagues attended a
demonstration held on Bobur square in Andijan, Uzbekistan. The
meeting was organised to protest against government policies. At some
point the authorities opened fire on the protesters. The applicant
managed to escape from the square. When he returned home his
relatives told him that he was being sought by the Uzbek
law-enforcement agencies on suspicion of organising the events in
Andijan.
On
26 May 2005 the applicant fled to Russia fearing prosecution by the
Uzbek authorities. He did not have a permanent place of residence in
Russia.
B. Proceedings in Uzbekistan
On
2 June 2005 the Fergana Region Prosecutor’s Office issued an
arrest warrant in respect of the applicant for his alleged
participation in the Andijan events. The applicant’s name was
put on a search list.
On
31 October 2007 the applicant was arrested in Russia (see paragraph
14 below).
On
7 November 2007 the applicant was charged in absentia with a
number of crimes, including commission of
terrorist acts, membership of extremist organisations, attempts to
overthrow the State’s constitutional order and organisation of
mass disorder.
On
26 November 2007 the Uzbek Prosecutor General’s Office
requested the Russian Prosecutor General’s Office to extradite
the applicant to Uzbekistan for prosecution.
On
21 April 2008 the Uzbek Prosecutor General’s Office reiterated
its request for the applicant’s extradition to the Russian
Prosecutor General’s Office, stating that “the
prosecution of M.T. Yuldashev will be conducted in strict compliance
with the Uzbek legislation”.
C. Proceedings in Russia
1. Extradition proceedings
On
31 October 2007 the applicant was arrested in Krasnoyarsk, Russia, on
the grounds that his name had been put on a cross-border wanted list
by the Uzbek authorities.
On
28 April 2008 the Russian Prosecutor General’s Office granted
the request of the Uzbek authorities and decided to extradite the
applicant to Uzbekistan.
On
20 May 2008 the applicant was informed about the extradition order.
On
10 October 2008 the applicant appealed against the extradition order
to the Moscow City Court, stating, inter alia, that he was
being sought by the Uzbek authorities for political crimes and that
the Russian Prosecutor General’s Office had disregarded his
allegations that there was a real risk of ill-treatment if he was
extradited to Uzbekistan. The applicant requested the court to
overrule the extradition order as unlawful and to release him from
detention.
On
26 December 2008 the Moscow City Court dismissed the applicant’s
appeal and upheld the extradition order. The court stated,
inter alia, that the applicant’s allegations that
there was a risk of ill treatment in Uzbekistan
“...were of a general nature and could not be
taken into consideration during the examination of the specific
information received in M.T. Yuldashev’s case...
...the letter of the Prosecutor General’s Office
of Uzbekistan guarantees that the prosecution of M.T. Yuldashev will
be conducted in strict compliance with the Uzbek legislation.”
On
11 January 2008 the applicant appealed against this decision to the
Supreme Court of the Russian Federation (the Supreme Court).
On
13 January 2009 the European Court of Human Rights granted the
applicant’s request for the application of interim measures
under Rule 39 of the Rules of Court to suspend his extradition
to Uzbekistan.
On
5 March 2009 the Supreme Court upheld the decision of the Moscow City
Court and the extradition order became final.
2. The applicant’s detention pending extradition
and his applications for release
On
31 October 2007 the applicant was arrested in Krasnoyarsk and on 1
November 2007 the Zheleznodorozhniy District Court of Krasnoyarsk
authorised his detention pending extradition until “the issue
concerning the extradition of M.T. Yuldashev to Uzbekistan has been
resolved” and without providing any time-limits.
On
30 January 2008 the Zheleznodorozhniy District Court ordered the
applicant’s detention pending extradition to Uzbekistan under
Article 466 § 1 of the CCP. No time-limits were
provided for this detention.
On
2 November 2008 the applicant complained to the Moscow Prosecutor
stating that his detention was both unlawful and excessively long. He
requested to be released and stated that he had been detained for
more than a year and that the prosecutor’s office had failed to
apply for an extension of his initial detention order of 1 November
2007. The Moscow Prosecutor replied to the applicant on 26 November
2008 stating that his detention “...could be repealed by a
court only if the extradition decision of the Prosecutor General’s
Office is overruled...”
On
17 November 2008 (in the submitted documents the date was also
referred to as 8 November 2008) the applicant complained to the
Tverskoy District Court of Moscow. He stated that he had been
detained for more than a year without any extensions of his detention
by domestic courts and that the authorities had failed to examine the
lawfulness of his detention.
On
16 December 2008 the Tverskoy District Court rejected the applicant’s
complaint for the following reasons:
“...under the provisions of Article 125 of the
Russian Criminal Procedure Code... decisions and actions (omissions)
[of authorities involved in criminal proceedings]... could be
appealed against to the District Court...
... from the submitted materials it follows that ...no
investigation by the Russian authorities is being conducted against
M. Yuldashev ... all actions related to his arrest and detention were
taken under the Convention on Legal Assistance and Legal Relations in
Civil, Family and Criminal Matters of January 22, 1993 [the Minsk
Convention] ... and under Article 466 of the Russian Code of Criminal
Procedure regulating the measures of restraint in.... matters
relating to extradition ....
Under such circumstances this application cannot be
examined under Article 125 of the Russian Criminal Procedure Code ...
which implies [only] the examination of complaints against officials
lodged within the framework of a criminal investigation [being
carried out] in the Russian Federation...”
On
24 December 2008 the applicant appealed against this decision to the
Moscow City Court. He stated, inter alia, that the lawfulness
of his detention had not been examined for more than a year and also
stated the following:
“... [the Tverskoy District Court] groundlessly
referring to the absence of a certain procedural status for the
applicant in the Russian judicial system, deprived him of the
possibility of re-examination of the length of his detention ...”
On
18 March 2009 the Moscow City Court rejected the applicant’s
complaint and upheld the decision of 16 December 2008.
On
20 April 2009 the applicant again complained about his detention to
the Tverskoy District Court and requested to be released. He stated
that he had been in detention for almost eighteen months, that the
length of his detention violated Articles 108 and 109 of the CCP and
that the domestic courts had failed to review the lawfulness of his
detention.
On
the same date, 20 April 2009, the Tverskoy District Court rejected
the applicant’s complaint as “the object of the complaint
did not fall within the requirements of Article 125 of the CCP”.
On
2 May 2009 the maximum eighteen-month detention period laid down in
Article 109 of the Russian Code of Criminal Procedure expired, but
the applicant remained in detention.
On
2 May 2009 the applicant appealed against the decision of 20 April
2009 to the Moscow City Court. He stated that he had been detained on
1 November 2007 and that the term of his detention pending
extradition was indefinite as it had not been extended by domestic
courts. The applicant referred to Articles 108 and 109 of the CCP and
the Constitutional Court’s decisions no. 101-0 of 4 April
2006 and no. 333-OP of 1 March 2007.
On
29 July 2009 the Moscow City Court dismissed the applicant’s
appeal for failure to comply with the time frame for lodging an
appeal.
On
20 August 2009 the applicant appealed through the supervisory review
procedure to the Presidium of the Moscow City Court against the
decision of 20 April 2009.
On
31 August 2009 the Presidium of the Moscow City Court dismissed the
applicant’s appeal.
On
28 September 2009 the applicant lodged an appeal with the Chairman of
the Moscow City Court against the decision of 31 August 2009. On 12
October 2009 the City Court dismissed the applicant’s appeal
for failure to comply with the procedural requirements.
On
10 December 2009 the applicant requested the Russian Prosecutor
General’s Office to order his release, stating that his
detention had exceeded the time-limit prescribed by the Criminal
Procedure Code.
On
22 December 2009 the applicant appealed through the supervisory
review procedure to the Supreme Court against the decision of the
Moscow City Court of 12 October 2009. On 24 December 2009 the Supreme
Court dismissed the appeal.
On
20 January 2010 the Russian Prosecutor General’s office refused
to order the applicant’s release, referring to the application
of the interim measure by the Court.
On
23 April 2010 the Babushkinskiy inter-district prosecutor’s
office ordered the applicant’s release and on the same date
requested the Babushkinskiy District Court to change the restrictive
measure applied in respect of the applicant to house arrest and to
transfer him to the detention centre for foreign citizens.
On
23 April 2010 the Babushkinskiy District Court refused to grant the
request of the inter-district prosecutor’s office and released
the applicant from detention.
On
26 April 2010 the Babushkinskiy inter-district prosecutor’s
office ordered the applicant to sign an undertaking not to leave the
area.
3. The applicant’s requests for refugee status
and temporary asylum
On
11 August 2008 the applicant requested the Moscow Federal Migration
Service (the FMS) to grant him refugee status in Russia. He referred
to his politically-motivated persecution in Uzbekistan for alleged
participation in the Andijan events in May 2005.
On
9 October 2008 the FMS refused to grant him refugee status, stating
that “...there are no substantiated grounds for Mr M. Yuldashev
to fear that he would become victim of political persecution in
Uzbekistan...”
On
24 November 2008 the applicant appealed against the refusal to the
Zamoskvoretskiy District Court of Moscow. Referring, inter alia,
to the case-law of the European Court of Human Rights, the applicant
complained that his allegations that there was a real risk of
ill-treatment in Uzbekistan had not been duly examined by the FMS and
requested that the decision of 9 October 2008 be overruled.
On
4 December 2008 the Zamoskvoretskiy District Court rejected the
applicant’s complaint and upheld the refusal. The
applicant appealed to the Moscow City Court against this decision.
On
26 December 2008 the Moscow City Court upheld the District Court’s
decision, stating that
“... the applicant failed ...to provide convincing
reasons demonstrating a well founded fear that he would become a
victim of political, racial or religious...persecution upon his
return to Uzbekistan...”
On
28 September 2009 the Moscow FMS decided to examine the applicant’s
request for temporary asylum in Russia.
On
26 October 2009 the Russian Department of the
UN High Commissioner on Refugees informed the Moscow FMS that the
applicant’s fear of politically motivated ill-treatment in
Uzbekistan was well-founded and justified.
On
25 December 2009 the Moscow FMS rejected the applicant’s
request for temporary asylum on the grounds that there was no real
risk of him being ill-treated in Uzbekistan.
On
11 February 2010 the applicant appealed against the refusal of
25 December 2009 to the Russia FMS. The proceedings are still
pending.
II. RELEVANT INTERNATIONAL AND
DOMESTIC LEGAL MATERIAL
A. Detention pending extradition and judicial review of
detention
1. The Russian Constitution
The Constitution guarantees the right to liberty
(Article 22):
“1. Everyone has the right to liberty and
personal integrity.
2. Arrest, placement in custody and detention
are permitted only on the basis of a judicial decision. Prior to a
judicial decision, an individual may not be detained for longer than
forty-eight hours.”
2. The European Convention on Extradition
Article 16 of the European Convention on Extradition
of 13 December 1957 (CETS no. 024), to which Russia is a party,
provides as follows:
“1. In case of urgency the competent authorities
of the requesting Party may request the provisional arrest of the
person sought. The competent authorities of the requested Party shall
decide the matter in accordance with its law.
...
4. Provisional arrest may be terminated if, within
eighteen days of arrest, the requested Party has not received the
request for extradition and the documents mentioned in Article 12. It
shall not, in any event, exceed forty days from the date of that
arrest. The possibility of provisional release at any time is not
excluded, but the requested Party shall take any measures which it
considers necessary to prevent the escape of the person sought.”
3. The 1993 Minsk Convention
The
CIS Convention on legal aid and legal relations in civil, family and
criminal cases (the 1993 Minsk Convention), to which both Russia and
Uzbekistan are parties, provides that a request for extradition must
be accompanied by a detention order (Article 58 § 2).
A
person whose extradition is sought may be arrested before receipt of
a request for his or her extradition. In such cases a special request
for arrest, containing a reference to the detention order and
indicating that a request for extradition will follow, must be sent.
A person may also be arrested in the absence of such a request if
there are reasons to suspect that he or she has committed, in the
territory of the other Contracting Party, an offence entailing
extradition. The other Contracting Party must be immediately informed
of the arrest (Article 61).
A
person arrested under Article 61 must be released if no request for
extradition is received within forty days of the arrest (Article 62 §
1).
4. The Code of Criminal Procedure
Chapter 13 of the Russian Code of Criminal Procedure
(“Preventive measures”) governs the use of preventive
measures (меры пресечения),
which include, in particular, placement in custody. Custody may be
ordered by a court on an application by an investigator or a
prosecutor if a person is charged with an offence carrying a sentence
of at least two years’ imprisonment, provided that a less
restrictive preventive measure cannot be used (Article 108 §§
1 and 3). The period of detention pending investigation may not
exceed two months (Article 109 § 1). A judge may extend that
period to six months (Article 109 § 2). Further extensions to
twelve months, or in exceptional circumstances, eighteen months, may
be granted only if the person is charged with serious or particularly
serious criminal offences (Article 109 § 3). No extension
beyond eighteen months is permissible and the detainee must be
released immediately (Article 109 § 4).
Chapter 16 (“Complaints about acts and decisions
by courts and officials involved in criminal proceedings”)
provides for the judicial review of decisions and acts or failures to
act by an investigator or a prosecutor that are capable of adversely
affecting the constitutional rights or freedoms of the parties to
criminal proceedings (Article 125 § 1). The court must examine
the complaint within five days of its receipt.
Chapter 54 (“Extradition of a person for
criminal prosecution or execution of sentence”) regulates
extradition procedures. On receipt of a request for extradition not
accompanied by an arrest warrant issued by a foreign court, a
prosecutor must decide on the preventive measure to be applied to the
person whose extradition is sought. The measure must be applied in
accordance with the established procedure (Article 466 § 1). A
person who has been granted asylum in Russia because of possible
political persecution in the State seeking his extradition may not be
extradited to that State (Article 464 § 1 (2)).
An extradition decision made by the Prosecutor General
may be challenged before a court. Issues of guilt or innocence are
not within the scope of judicial review, which is limited to an
assessment of whether the extradition order was made in accordance
with the procedure set out in the relevant international and domestic
law (Article 463 §§ 1 and 6).
5. The Code of Civil Procedure
A person may apply for judicial review of decisions
and acts or failures to act by a State body or a State official that
are capable of violating his or her rights or freedoms, hindering the
exercise of his or her rights and freedoms, or imposing an obligation
or liability unlawfully (Articles 254 § 1 and 255). If the court
finds the application well-founded, it must order the State body or
State official concerned to remedy the violation or remove the
obstacle to the exercise of the rights and freedoms in question
(Article 258 § 1).
6. Case-law of the Constitutional Court
(a) Constitutional Court decision no.
292-O of 15 July 2003
On 15 July 2003 the Constitutional Court issued
decision no. 292-O concerning a complaint by Mr Khudoyorov about the
ex post facto extension of his “detention during
judicial proceedings” by the Vladimir Regional Court’s
decision. It held as follows:
“Article 255 § 3 of the Code of Criminal
Procedure of the Russian Federation provides that the [trial court]
may ... upon the expiry of six months after the case was sent to it,
extend the defendant’s detention for successive periods of up
to three months. It does not contain, however, any provisions
permitting the courts to take a decision extending the defendant’s
detention once the previously authorised time limit has expired,
in which event the person is detained for a period without a judicial
decision. Nor do other rules of criminal procedure provide for such a
possibility. Moreover, Articles 10 § 2 and 109 § 4 of the
Code of Criminal Procedure expressly require the court, prosecutor,
investigator ... to immediately release anyone who is unlawfully held
in custody beyond the time-limit established in the Code. Such is
also the requirement of Article 5 §§ 3 and 4 of the
European Convention ... which is an integral part of the legal system
of the Russian Federation, pursuant to Article 15 § 4 of the
Russian Constitution...”
(b) Constitutional Court decision no.
101-O of 4 April 2006
Verifying
the compatibility of Article 466 § 1 of the CCP with the Russian
Constitution, the Constitutional Court reiterated its established
case-law to the effect that excessive or arbitrary detention,
unlimited in time and without appropriate review, was incompatible
with Article 22 of the Constitution and Article 14 § 3 of the
International Covenant on Civil and Political Rights in all cases,
including extradition proceedings.
In the Constitutional Court’s view, the
guarantees of the right to liberty and personal integrity set out in
Article 22 and Chapter 2 of the Constitution, as well as the legal
norms laid down in Chapter 13 of the CCP on preventive measures, were
fully applicable to detention with a view to extradition.
Accordingly, Article 466 of the CCP did not allow the authorities to
apply a custodial measure without abiding by the procedure
established in the CCP, or in excess of the time-limits fixed
therein.
(c) Constitutional Court decision no.
158-O of 11 July 2006 on the Prosecutor General’s request for
clarification
The
Prosecutor General asked the Constitutional Court for an official
clarification of its decision no. 101-O of 4 April 2006 (see above),
for the purpose, in particular, of elucidating the procedure for
extending a person’s detention with a view to extradition.
The
Constitutional Court dismissed the request on the ground that it was
not competent to indicate specific criminal-law provisions governing
the procedure and time-limits for holding a person in custody with a
view to extradition. That was a matter for the courts of general
jurisdiction.
(d) Constitutional Court decision no.
333-O-P of 1 March 2007
In
this decision the Constitutional Court reiterated that Article 466 of
the CCP did not imply that detention of a person on the basis of an
extradition request did not have to comply with the terms and
time-limits provided for in the legislation on criminal procedure.
(e) Ruling of the Plenary Session of the
Supreme Court of the Russian Federation no. 22 of 29 October 2009
In
this ruling the Supreme Court reiterated that the arrest and
detention of a person in view of his/her extradition under Article
466 of the CCP should comply with the requirements of Article 108 of
the CCP and that the detention pending extradition could be extended
only in compliance with the requirements of Article 109 of the CCP.
B. Relevant documents concerning the use of diplomatic
assurances and the situation in Uzbekistan
UN General Assembly resolution 62/148 of 18 December
2007 (“Torture and other cruel, inhuman or degrading treatment
or punishment” (UN Doc.:A/RES/62/148)) reads as follows:
“The General Assembly...
12. Urges States not to expel, return (‘refouler’),
extradite or in any other way transfer a person to another State
where there are substantial grounds for believing that the person
would be in danger of being subjected to torture, and recognizes that
diplomatic assurances, where used, do not release States from their
obligations under international human rights, humanitarian and
refugee law, in particular the principle of non-refoulement...”
In
his interim report submitted in accordance with Assembly resolution
59/182 (UN Doc.: A/60/316, 30 August 2005), the Special Rapporteur of
the Commission on Human Rights on torture and other cruel, inhuman or
degrading treatment or punishment, Manfred Nowak, reached the
following conclusions:
“51. It is the view of the Special Rapporteur that
diplomatic assurances are unreliable and ineffective in the
protection against torture and ill-treatment: such assurances are
sought usually from States where the practice of torture is
systematic; post-return monitoring mechanisms have proven to be no
guarantee against torture; diplomatic assurances are not legally
binding, therefore they carry no legal effect and no accountability
if breached; and the person whom the assurances aim to protect has no
recourse if the assurances are violated. The Special Rapporteur is
therefore of the opinion that States cannot resort to diplomatic
assurances as a safeguard against torture and ill-treatment where
there are substantial grounds for believing that a person would be in
danger of being subjected to torture or ill treatment upon
return.
52. The Special Rapporteur calls on Governments to
observe the principle of non refoulement scrupulously and not
expel any person to frontiers or territories where they might run the
risk of human rights violations, regardless of whether they have
officially been recognised as refugees.”
Specifically referring to the situation regarding
torture in Uzbekistan and returns to torture effected in reliance
upon diplomatic assurances from the Uzbek authorities, the UN Special
Rapporteur on Torture stated to the 2nd Session of the UN Human
Rights Council on 20 September 2006:
“The practice of torture in Uzbekistan is
systematic, as indicated in the report of my predecessor Theo van
Boven’s visit to the country in 2002. Lending support to this
finding, my mandate continues to receive serious allegations of
torture by Uzbek law enforcement officials... Moreover, with respect
to the events in May 2005 in Andijan, the UN High Commissioner for
Human Rights reported that there is strong, consistent and credible
testimony to the effect that Uzbek military and security forces
committed grave human rights violations there. The fact that the
Government has rejected an international inquiry into the Andijan
events, independent scrutiny of the related proceedings, and that
there is no internationally accepted account of the events, is deeply
worrying. Against such significant, serious and credible evidence of
systematic torture by law enforcement officials in Uzbekistan, I
continue to find myself appealing to Governments to refrain from
transferring persons to Uzbekistan. The prohibition of torture is
absolute, and States risk violating this prohibition - their
obligations under international law - by transferring persons to
countries where they may be at risk of torture. I reiterate that
diplomatic assurances are not legally binding, undermine existing
obligations of States to prohibit torture, are ineffective and
unreliable in ensuring the protection of returned persons, and
therefore shall not be resorted to by States.”
Further
referring to the situation regarding torture in Uzbekistan, the UN
Special Rapporteur on Torture stated to the 3rd Session of the
UN Human Rights Council on 18 September 2008:
“741. The Special Rapporteur ... stressed that he
continued to receive serious allegations of torture by Uzbek law
enforcement officials...
743. Moreover, with respect to the events in May 2005 in
Andijan, the UN High Commissioner for Human Rights reported that
there is strong, consistent and credible testimony to the effect that
Uzbek military and security forces committed grave human rights
violations there. The fact that the Government has rejected an
international inquiry into the Andijan events, and any independent
scrutiny of the related proceedings, and that there is no
internationally accepted account of the events, is deeply worrying.
Even more so, given that no independent monitoring of human rights is
currently being conducted.
744. In light of the foregoing, there is little evidence
available, including from the Government that would dispel or
otherwise persuade the Special Rapporteur that the practice of
torture has significantly improved since the visit which took place
in 2002...”
The
UN High Commissioner for Refugees’ Note on Diplomatic
Assurances and International Refugee Protection published on 10
August 2006 reads as follows:
22. In general, assessing the suitability of diplomatic
assurances is relatively straightforward where they are intended to
ensure that the individual concerned will not be subjected to capital
punishment or certain violations of fair trial rights as a
consequence of extradition. In such cases, the wanted person is
transferred to a formal process, and the requesting State’s
compliance with the assurances can be monitored. While there is no
effective remedy for the requested State or the surrendered person if
the assurances are not observed, non-compliance can be readily
identified and would need to be taken into account when evaluating
the reliability of such assurances in any future cases.
23. The situation is different where the individual
concerned risks being subjected to torture or other cruel, inhuman or
degrading treatment in the receiving State upon removal. It has been
noted that ‘unlike assurances on the use of the death penalty
or trial by a military court, which are readily verifiable,
assurances against torture and other abuse require constant vigilance
by competent and independent personnel’. The Supreme Court of
Canada addressed the issue in its decision in Suresh v. Canada
(Minister of Citizenship and Immigration), contrasting
assurances in cases of a risk of torture with those given where the
person extradited may face the death penalty, and signalling
‘...the difficulty in relying too heavily on
assurances by a state that it will refrain from torture in the future
when it has engaged in illegal torture or allowed others to do so on
its territory in the past. This difficulty becomes acute in cases
where torture is inflicted not only with the collusion but through
the impotence of the state in controlling the behaviour of its
officials. Hence the need to distinguish between assurances regarding
the death penalty and assurances regarding torture. The former are
easier to monitor and generally more reliable than the latter.’
24. In his report to the UN General Assembly of 1
September 2004, the special Rapporteur of the UN Commission on Human
Rights on torture and other cruel, inhuman or degrading treatment or
punishment examined the question of diplomatic assurances in light of
the non-refoulement obligations inherent in the absolute and
non-derogable prohibition of torture and other forms of
ill-treatment. Noting that in determining whether there are
substantial grounds for believing that a person would be in danger of
being subjected to torture, all relevant considerations must be taken
into account, the Special Rapporteur expressed the view that:
‘in circumstances where there is a consistent
pattern of gross, flagrant or mass violations of human rights, or of
systematic practice of torture, the principle of non refoulement
must be strictly observed and diplomatic assurances should not be
resorted to.’”
United
States Department of State, 2009 Country Reports on Human Rights
Practices – Uzbekistan, 11 March 2010.
“C. Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment
Although the constitution and law prohibit such
practices, law enforcement and security officers routinely beat and
otherwise mistreated detainees to obtain confessions or incriminating
information. Torture and abuse were common in prisons, pretrial
facilities, and local police and security service precincts.
Prisoners were subjected to extreme temperatures. Observers reported
several cases of medical abuse, and one known person remained in
forced psychiatric treatment.
...
Authorities reportedly gave harsher than normal
treatment to individuals suspected of extreme Islamist political
sympathies, notably pretrial detainees who were alleged members of
banned extremist political organizations Hizb ut-Tahrir (HT) or Nur.
Local human rights workers reported that authorities often paid or
otherwise induced common criminals to beat suspected extremists and
others who opposed the government. Two human rights defenders who
were arrested reported beatings in pretrial detention facilities.
There were reports of politically motivated medical
abuse. Victims could request through legal counsel that their cases
be reviewed by an expert medical board. In practice, however, such
bodies generally supported the decisions of law enforcement
authorities.
...
Prison and Detention Center Conditions
Prison conditions remained poor and in some cases life
threatening. There continued to be reports of severe abuse,
overcrowding, and shortages of food and medicine. Tuberculosis and
hepatitis were endemic in the prisons, making even short periods of
incarceration potentially life-threatening. Family members frequently
reported that officials stole food and medicine that were intended
for prisoners.
There were reports that authorities did not release
prisoners, especially those convicted of religious extremism, at the
end of their terms. Instead, prison authorities contrived to extend
inmates’ terms by accusing them of additional crimes or
claiming the prisoners represented a continuing danger to society.
These accusations were not subject to judicial review.”
The European Committee for the Prevention of Torture
(“the CPT”), in its 15th General Report of 22 September
2005 on its activities covering the period from 1 August 2004 to 31
July 2005, expressed concern about reliance on diplomatic assurances
in the light of the absolute prohibition on torture:
“38. Reference was made in the Preface to the
potential tension between a State’s obligation to protect its
citizens against terrorist acts and the need to uphold fundamental
values. This is well illustrated by the current controversy over the
use of ‘diplomatic assurances’ in the context of
deportation procedures. The prohibition of torture and inhuman or
degrading treatment encompasses the obligation not to send a person
to a country where there are substantial grounds for believing that
he or she would run a real risk of being subjected to such methods.
In order to avoid such a risk in given cases, certain States have
chosen the route of seeking assurances from the country of
destination that the person concerned will not be ill-treated. This
practice is far from new, but has come under the spotlight in recent
years as States have increasingly sought to remove from their
territory persons deemed to endanger national security. Fears are
growing that the use of diplomatic assurances is in fact
circumventing the prohibition of torture and ill-treatment.
39. The seeking of diplomatic assurances from
countries with a poor overall record in relation to torture and
ill-treatment is giving rise to particular concern. It does not
necessarily follow from such a record that someone whose deportation
is envisaged personally runs a real risk of being ill-treated in the
country concerned; the specific circumstances of each case have to be
taken into account when making that assessment. However, if in fact
there would appear to be a risk of ill-treatment, can diplomatic
assurances received from the authorities of a country where torture
and ill-treatment is widely practised ever offer sufficient
protection against that risk? It has been advanced with some cogency
that even assuming those authorities do exercise effective control
over the agencies that might take the person concerned into their
custody (which may not always be the case), there can be no guarantee
that assurances given will be respected in practice. If these
countries fail to respect their obligations under international human
rights treaties ratified by them, so the argument runs, why should
one be confident that they will respect assurances given on a
bilateral basis in a particular case?
40. In response, it has been argued that
mechanisms can be devised for the post-return monitoring of the
treatment of a person deported, in the event of his/her being
detained. While the CPT retains an open mind on this subject, it has
yet to see convincing proposals for an effective and workable
mechanism. To have any chance of being effective, such a mechanism
would certainly need to incorporate some key guarantees, including
the right of independent and suitably qualified persons to visit the
individual concerned at any time, without prior notice, and to
interview him/her in private in a place of their choosing. The
mechanism would also have to offer means of ensuring that immediate
remedial action is taken, in the event of it coming to light that
assurances given were not being respected.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The applicant complained that his
extradition to Uzbekistan would subject him to a real risk of torture
and ill-treatment prohibited by Article 3 of the Convention,
which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
The
Government submitted that the allegation that the applicant would
suffer political persecution had been checked by the Russian courts
when examining his appeals against the extradition order and had been
rejected as unfounded. The Russian courts had relied on the statement
from the Uzbek Prosecutor General’s Office that there would be
no risk of ill treatment for the applicant if he were extradited
to Uzbekistan and that the capital punishment was abolished by the
countries’ authorities. With reference to assurances from the
Uzbek authorities the Government argued that the applicant would not
be subjected to ill-treatment or punishment contrary to Article 3 of
the Convention.
The
applicant maintained that he had argued before the Russian courts
that there was a real risk that he would be ill-treated and
persecuted politically in Uzbekistan. He had submitted reports on
Uzbekistan by the UN institutions and international NGOs, confirming
that torture was widespread in detention facilities and that this
information had not been properly assessed by the Russian
authorities. He pointed out that the courts had rejected his
arguments without giving any reasons other than the reference to the
assurances given by the Uzbek authorities. Finally, he referred to a
number of cases examined by the Court in which it had been
established that extradition to Uzbekistan of a person sought for
political crimes would constitute a violation of Article 3.
B. The Court’s assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
For
a summary of the relevant general principles emerging from the
Court’s case-law see Mamatkulov and Askarov v. Turkey ([GC],
nos. 46827/99 and 46951/99, §§ 66-70, ECHR 2005 I).
From the materials submitted by the parties it follows
that the applicant was arrested in Russia and subsequently detained
at the request of the Uzbek authorities, who suspected him of a
number of crimes, including an attempt to overthrow the
Constitutional order, terrorist acts and membership of an extremist
organisation. The Russian authorities commenced extradition
proceedings against him. Throughout the proceedings the applicant
claimed that his extradition to Uzbekistan would expose him to a
danger of ill-treatment. He also lodged an application for asylum,
reiterating his fears of torture and persecution for political
motives. He supported his submissions with reports prepared by UN
institutions and international NGOs describing the ill-treatment of
detainees in Uzbekistan. The Russian authorities rejected his
application for refugee status and ordered his extradition to
Uzbekistan.
The
Court’s task is to establish whether there is a real risk of
ill treatment in the event of the applicant’s extradition
to Uzbekistan. Since he has not yet been extradited, owing to the
application by the Court of an interim measure under Rule 39 of the
Rules of Court, the material date for the assessment of that risk is
that of the Court’s consideration of the case. It follows that,
although the historical position is of interest in so far as it may
shed light on the current situation and its likely evolution, it is
the present conditions which are decisive (see Chahal v. the
United Kingdom, 15 November 1996, Reports of Judgments
and Decisions 1996-V, § 86).
As
to the applicant’s allegation that detainees suffer
ill-treatment in Uzbekistan, the Court has recently acknowledged that
this general problem still persists in the country (see, for example,
Ismoilov and Others v. Russia, no. 2947/06, §§
120-121, 24 April 2008, and Muminov v. Russia,
no. 42502/06, §§ 93-96, 11 December 2008). No
concrete evidence has been produced to demonstrate any fundamental
improvement in this area in this country for several years. Given
these circumstances, the Court considers that ill-treatment of
detainees is a pervasive and enduring problem in Uzbekistan.
As
to the applicant’s personal situation, the Court observes that
he was charged with politically motivated crimes. Given that an
arrest warrant was issued in respect of the applicant, it is most
likely that he would be placed in custody directly after his
extradition and would therefore run a serious risk of ill-treatment.
As
to the Government’s argument that assurances were obtained from
the Uzbek authorities, the Court has already cautioned against
reliance on diplomatic assurances against torture from a State where
torture is endemic or persistent (see Chahal, cited above, and
Saadi v. Italy [GC], no. 37201/06, §§ 147-148,
ECHR 2008-...). Given that the practice of torture in Uzbekistan is
described by reputable international sources as systematic (see
paragraphs 71, 72 and 74 above), the Court is not persuaded that
assurances from the Uzbek authorities offer a reliable guarantee
against the risk of ill treatment.
Accordingly, the applicant’s forcible return to
Uzbekistan would give rise to a violation of Article 3 as he would
face a serious risk of being subjected to torture or inhuman or
degrading treatment there.
II. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1
AND 4 OF THE CONVENTION
The applicant complained under Article 5 § 1 (f)
of the Convention that his detention pending extradition had been
unlawful and indefinite in its duration, in violation of the relevant
provisions of the domestic law. The relevant parts of Article 5 §
1 (f) read as follows:
“1. Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by
law:
...
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.”
He
also complained under Article 5 § 4 of the Convention that the
domestic courts had failed to review the lawfulness of his detention.
Article 5 § 4 of the Convention reads as follows:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
A. The parties’ submissions
The
Government insisted that the applicant’s detention pending
extradition had been lawful as it had been based on the decision of
the Zheleznodorozhniy District Court of 1 November 2007. They
submitted that after that his detention had been authorised by the
same court on 30 January 2008 and that it fully complied with the
provisions of Article 466 § 1 of the CCP. They
further stated that the duration of the detention had lengthened
owing to the applicant’s request for refugee status and the
application of the interim measures by the Court.
The
Government contended that the applicant’s complaint concerning
the alleged failure of the domestic courts to review the lawfulness
of his detention was manifestly ill-founded as he had challenged the
lawfulness of his detention by unsuccessfully complaining to the
Tverskoy District Court in November 2008.
The
applicant disagreed with the Government. He submitted that neither of
the court orders of 1 November 2007 and 30 January 2008 had provided
any time-limits for his detention and that the length of his
detention was excessive, in violation of all relevant provisions of
the Russian criminal procedure regulations.
The
applicant further submitted that the Russian courts had not reviewed
the lawfulness of his detention by failing to recognise him as a
party to any relevant criminal proceedings (see paragraphs 26-27 and
29 30 above).
B. The Court’s assessment
1. Admissibility
The
Court notes that the applicant’s complaints under Article 5
§§ 1 and 4 are not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and are not
inadmissible on any other grounds. They must therefore be declared
admissible.
2. Merits
a) Article 5 § 1 of
the Convention
It
is common ground between the parties that the applicant was detained
as a person “against whom action is being taken with a view to
deportation or extradition” and that his detention fell under
Article 5 § 1 (f). The parties dispute, however, whether this
detention was “lawful” within the meaning of Article 5 §
1 of the Convention.
The
Court observes that the applicant was detained in Russia pursuant to
an arrest warrant issued by a prosecutor’s office in
Uzbekistan. His detention was initially authorised on 1 November 2007
by the Zheleznodorozhniy District Court and then upheld on 30 January
2008. Neither of the decisions provided time-limits for the
applicant’s detention.
As
for the Government’s reference that the applicant’s
detention in view of his extradition to Uzbekistan had complied with
the requirements of Article 466 § 1 of the CCP,
the Court notes that according to the decisions of the Constitutional
Court no. 158-O of 11 July 2006 and no. 333-O-P of 1 March
2007 and the Ruling of the Plenary Session of the Supreme Court of
the Russian Federation no. 22 of 29 October 2009, when dealing with
the matters concerning the detention pending extradition, Russian
courts should comply with the requirements of Article 108 of the CCP
and that the detention in view of extradition could be extended only
in compliance with the requirements of Article 109 of the CCP (see
paragraphs 65-68 above).
In
a number of its recent judgments the Court has already found that the
provisions of the Russian law governing detention of persons with a
view to extradition were neither precise nor foreseeable in their
application and fell short of the “quality of law”
standard required under the Convention (see, for example, Nasrulloyev
v. Russia, no. 656/06, § 72, 11 October 2007;
Ismoilov and Others, cited above, § 142; Muminov,
cited above, § 122; and Khudyakova v. Russia, no.
13476/04, § 73, 8 January 2009).
The
Court upholds the findings made in the above-mentioned cases and
finds that, in spite of the Government’s references to the
contrary, the absence of clear legal provisions establishing the
procedure for ordering and extending detention with a view to
extradition and setting time-limits for such detention, the
deprivation of liberty to which the applicant was subjected was not
circumscribed by adequate safeguards against arbitrariness. In
particular, the Court observes that neither of the court orders to
which the applicant referred, set any time-limit for his detention
(see paragraphs 22 and 23 above). Under the provisions governing the
general terms of detention (Article 108 of the CCP), the time-limit
for detention pending investigation was fixed at two months. A judge
could extend that period up to six months. Further extensions could
only be granted by a judge if the person was charged with serious or
particularly serious criminal offences. However, upon the expiry of
the maximum initial detention period of two months (Article 109 §
1 of the CCP), no extension was granted by a court in the present
case. The applicant was detained pending extradition from 31 October
2007 until 23 April 2010 that is for almost two and half years based
on the last court order of 30 January 2008. During that period no
requests for extension of his detention were lodged. Thus, the
national system failed to protect the applicant from arbitrary
detention, and his detention cannot be considered “lawful”
for the purposes of Article 5 § 1 of the Convention.
In
view of the above, the Court finds that the applicant’s
detention during the period in question was unlawful and arbitrary,
in violation of Article 5 § 1.
b) Article 5 § 4 of the Convention
The Court reiterates that the purpose of Article 5 §
4 is to assure to persons who are arrested and detained the right to
judicial supervision of the lawfulness of the measure to which they
are thereby subjected (see, mutatis mutandis, De Wilde, De
Wilde, Ooms and Versyp v. Belgium, § 76, 18
June 1971, Series A no. 12). A remedy must be made available during a
person’s detention to allow that person to obtain speedy
judicial review of the lawfulness of the detention, capable of
leading, where appropriate, to his or her release. The existence of
the remedy required by Article 5 § 4 must be sufficiently
certain, not only in theory but also in practice, failing which it
will lack the accessibility and effectiveness required for the
purposes of that provision (see, mutatis mutandis,
Stoichkov v. Bulgaria, no. 9808/02, § 66
in fine, 24 March 2005, and Vachev v. Bulgaria, no.
42987/98, § 71, ECHR 2004-VIII (extracts)). The accessibility of
a remedy implies, inter alia, that the circumstances
voluntarily created by the authorities must be such as to afford
applicants a realistic possibility of using the remedy (see,
mutatis mutandis, Čonka, cited above, §§ 46
and 55).
The
Court is not persuaded by the Government’s argument that the
applicant had obtained judicial review of his detention by
complaining on 17 November 2008 that his detention was unlawful and
he was unable to obtain judicial review (see paragraph 25 above). The
applicant sought to argue before the courts that his detention had
ceased to be lawful after the expiry of the time-limit established by
Article 109 of the Code of Criminal Procedure. By virtue of Article 5
§ 4 he was entitled to apply to a “court” having
jurisdiction to decide “speedily” whether or not his
deprivation of liberty had become “unlawful” in the light
of new factors which emerged subsequently to the decision on their
initial placement in custody (see, mutadis mutandis, Weeks
v. the United Kingdom, 2 March 1987, §§ 55-59,
Series A no. 114).
The
applicant’s complaint concerning the review of his detention
was rejected by the domestic courts as incompatible with Article 125
of the CCP which provided, in principle, for judicial review of
complaints about alleged infringements of rights and freedoms which
would presumably include the constitutional right to liberty. That
provision conferred standing to bring such a complaint solely on
“parties to criminal proceedings”. The Russian courts
consistently refused to recognise the applicant’s position as a
party to criminal proceedings on the ground that there was no
criminal case against him in Russia (see paragraphs 26 and 30 above).
The
Court notes that in their observations the Government did not suggest
any avenues for the judicial examination of the applicant’s
requests for the review of his detention.
Finally,
the Court also notes that the applicant’s situation is similar
to that of the applicants in the cases of Nasrulloyev (see
Nasrulloyev, cited above, §§ 88-89), and Ryabikin
v. Russia (no. 8320/04, § 139, 19 June 2008) where it was
established that the applicants had no formal status under national
criminal law because there was no criminal case against them in
Russia and they could not therefore have the lawfulness of their
detention reviewed by a court.
It
follows that throughout the term of the applicant’s detention
he did not have at his disposal any procedure through which the
lawfulness of his detention could have been examined by a court.
There
has therefore been a violation of Article 5 § 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant alleged that he had had no effective remedies against the
above violations. He referred to Article 13, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The parties’ submissions
The
Government contended that the applicant had had access to domestic
courts in respect of his complaints about the risk of ill-treatment.
He had appealed against the extradition order to domestic courts.
They contended that this remedy was effective and the absence of a
desirable outcome of the applicant’s appeals did not
demonstrate its ineffectiveness.
The
applicant reiterated his complaint.
B. The Court’s assessment
1. Admissibility
The
Court notes that the applicant’s complaint under Article 13 is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention and is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
The Court notes that the scope of a State’s obligation under
Article 13 varies depending on the nature of the applicant’s
complaint under the Convention. Given the irreversible nature of the
harm that might occur if the alleged risk of torture or ill-treatment
materialised and the importance which the Court attaches to Article
3, the notion of an effective remedy under Article 13 requires (i)
independent and rigorous scrutiny of a claim that there are
substantial grounds for believing that there was a real risk of
treatment contrary to Article 3 in the event of the applicant’s
expulsion to the country of destination, and (ii) the provision of an
effective possibility of suspending the enforcement of measures whose
effects are potentially irreversible (or “a remedy with
automatic suspensive effect” as it is phrased in Gebremedhin
[Gaberamadhien] v. France, no. 25389/05, § 66 in
fine, ECHR 2007-V, which concerned an asylum seeker wishing to
enter the territory of France; see also Jabari v. Turkey,
no. 40035/98, § 50, ECHR 2000-VIII; Shamayev
and Others, cited above, § 460; Olaechea Cahuas
v. Spain, no. 24668/03, § 35, ECHR 2006-X;
and Salah Sheekh v. the Netherlands, no. 1948/04,
§ 154, ECHR 2007-I (extracts).
Judicial
review proceedings constitute, in principle, an effective remedy
within the meaning of Article 13 of the Convention in relation
to complaints in the context of expulsion and extradition, provided
that the courts can effectively review the legality of executive
discretion on substantive and procedural grounds and quash decisions
as appropriate (see Slivenko v. Latvia (dec.) [GC],
no. 48321/99, § 99, ECHR 2002-II). Turning to the
circumstances of the present case, the Court observes that the
decision of the Prosecutor General’s Office to extradite the
applicant was upheld on appeals by the Moscow City Court and the
Supreme Court. In their decisions the domestic courts did not conduct
a detailed examination of the applicant’s allegation of the
risk of ill-treatment in Uzbekistan and only referred in general
terms to the assurances provided by the Uzbek authorities (see
paragraph 18 above). Consequently, the courts failed to rigorously
scrutinise the applicant’s claims of the risk of ill-treatment
in the event of his extradition to Uzbekistan.
It should also be noted that the Government did not
refer to any provisions of domestic legislation which could have
afforded redress in the applicant’s situation or had a
suspensive effect on his extradition (see, mutatis mutandis,
Muminov, cited
above §§ 102-104).
Accordingly,
the Court concludes that in the circumstances of the present case
there has been a violation of Article 13 of the Convention
because the applicant was not afforded an effective and accessible
remedy in relation to his complaint under Article 3 of the
Convention.
As
regards the applicant’s complaints under Article 5 of the
Convention, in the light of the Court’s established case-law
stating that the more specific guarantees of Article 5, being a lex
specialis in relation to Article 13, absorb its requirements
(see Dimitrov v. Bulgaria (dec.), no. 55861/00, 9 May
2006) and in view of its above findings of violations of Article 5 of
the Convention, the Court considers that no separate issue arises in
respect of Article 13 in connection with Article 5 of the Convention
in the circumstances of the present case.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 25,000 euros (EUR) in respect of non pecuniary
damage.
The
Government submitted that the amount claimed was excessive.
The
Court, making an assessment on an equitable basis, awards EUR 25,000
to the applicant in respect of non-pecuniary damage as requested plus
any tax that may be chargeable on that amount.
B. Costs and expenses
Relying
on the fee agreements and the lawyers’ time sheets, the
applicant claimed 5,462 pounds sterling (GBP)
(approximately EUR 6,190) for the work of London-based lawyers Mr K.
Koroteev and Ms J. Evans together with administrative and translation
costs and for the work of Ms E. Ryabinina for his
representation before the domestic authorities and the Court.
The
Government contended that the applicant had not submitted any proof
that the payments had actually been made and that the amounts were
reasonable.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 5,500 covering costs
under all heads, plus any tax that may be chargeable to the applicant
on that amount.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that in the event of the extradition order
against the applicant being enforced, there would be a violation of
Article 3 of the Convention;
Holds that there has been a violation of Article
5 § 1 of the Convention;
Holds that there has been a violation of Article
5 § 4 of the Convention;
Holds that there has been a violation of Article
13 in conjunction with Article 3 of the Convention;
Holds that there is no need to examine the
alleged violation of Article 13 in conjunction with Article 5 of
the Convention;
Holds
That
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention:
(a) EUR
25,000 (twenty-five thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(b)
EUR 5,500 (five thousand five hundred euros) plus any tax that may be
chargeable to the applicant, for costs and expenses, to be converted
into pounds sterling (GBP) at the rate
applicable at the date of settlement and paid into the bank account
in London indicated by the applicant;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 8 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
